Scottish Court of Session Decisions

Petitioner: Byrne, Advocate; Drummond Miller LLP

Respondent: Pirie; Office of the Advocate General

20 March 2014

Introduction

[1] This petition called at a procedural first hearing on 26 February 2014. The petitioner was represented by Mr Byrne and the respondent by Mr Pirie. The petition seeks judicial review of the decision of the Upper Tribunal dated 17 December 2013 to refuse permission to appeal from a determination of the First‑tier Tribunal judge dated 7 November 2013. The issue at this stage is whether the petitioner can establish that the circumstances averred bring the matter within the supervisory jurisdiction of this court as defined in the case of Eba v Advocate General 2012 SC 1

[2] The petitioner, who is a Nigerian national, arrived in the United Kingdom on or around 29 April 2012 and claimed asylum shortly thereafter on the grounds that she was a victim of sexual trafficking from Nigeria to the United Kingdom. She had a screening interview on 30 May 2012 and her application was refused. She appealed that decision to the First-tier Tribunal (FTT). At the hearing on 21 October 2013 the petitioner gave evidence and evidence was also led from a clinical psychologist, Dr Copstick who spoke to a neuropsychological assessment carried out on 19 September 2013. There was also a report prepared by a psychiatrist on behalf of the petitioner.

[3] The principal issue before the FTT was the credibility of the petitioner and, in particular, whether her account of being a victim of sexual trafficking was to be accepted. The FTT rejected her evidence and gave reasons for that at paragraphs 80 - 94 of the determination. The Tribunal accepted that the petitioner suffered from post-traumatic stress disorder as diagnosed by the psychiatrist but rejected her account of how she came to enter the United Kingdom because she had been inconsistent in a number of respects in the detail of her evidence. She had entered the United Kingdom in what she claimed to be a false passport in a false name and she claimed that that identity was given to her by her trafficker. When she initially claimed asylum she claimed a date of birth of 10 July 1996 whereas the visa applications provided a date of birth of 14 July 1984. A formal age assessment had found her to be substantially above the age of 18. She had been inconsistent on the number of times she had been fingerprinted, how many times she actually applied for a visa and the number of times she attended for a visa at the appropriate office. Her visa application described her occupation as "banking, marketing officer". In evidence she claimed that that was false and that occupation was one of the details provided to her by her trafficker in Nigeria.

[4] The evidence of Dr Copstick, the psychologist, was to the effect that her mental age was substantially below her physical age. She could not perform intellectual tests more than someone of about 10 or 11 years of age in UK terms. The psychologist considered that her answers and behaviour were consistent with someone who had a mental age of someone in the UK of about 7 to 11 years. The conclusions of the report find that she had very poor language ability "for a woman of her age" and had difficulty expressing herself. She had difficulty with times and dates and had poor verbal memory for new information.

[5] At paragraph 85 of the determination the FTT states that it carefully considered the conclusions of the psychological report and the fact that she had little understanding of the calendar and time and that her "cognitive capabilities may not be developed". The Tribunal was satisfied that she was not who she claimed to be in her evidence nor was she the age she claimed to be. It was satisfied that she had not been trafficked to the United Kingdom but accepted that she suffered from post-traumatic stress disorder.

[6] The petitioner applied for permission to appeal first to the First-tier Tribunal. She advanced a number of grounds of appeal. Under the heading ground 1 there are two paragraphs. Paragraph 5 is directed to the FTT's findings in relation to the number of visa applications the petitioner had made and criticises the Tribunal for failing to set out what discrepancies it considered existed in her evidence in respect of that matter. In paragraph 6 it is stated that the decision failed to take account that the petitioner had a mental age of between 7 and 11 years of age and references made to Dr Copstick's report. Ground 2 at paragraph 7 is to the effect that, in criticising the petitioner's inconsistency in relation to her date of birth and age, the Tribunal failed to take account of Dr Copstick's report which had a direct bearing on the assessment of credibility. Paragraph 8 further criticises the Tribunal's determination in relation to the discrepancies as to how many times she attended to have photographs or fingerprints taken. Again, it is said that there is "no appreciation of the exceptional circumstances of this applicant's mental age and (in)ability" (sic).

[7] In the refusal of permission to appeal (6/2 of process), the First-tier Tribunal's decision dated 29 November 2013 deals with ground 1 in the following terms:

"Ground 1 asserts the judge failed to give reasons for finding the appellant's account was inconsistent as to the number of times she had been fingerprinted. This issue was raised in paragraph 28 of the respondent's reasons letter which rehearsed why it was considered there was an inconsistency. It appears from the Tribunal file that this alleged inconsistency of which the appellant was aware was not addressed."

Grounds 2 and 3 are dealt with in the same paragraph to this effect:

"Grounds 2 and 3 refer to the issue of the appellant's age. The judge had before her a 'Merton compliant' age assessment. Dr Copstick had seen the report of Dr Kathuria (the psychiatrist) and so was aware of the issue of the disputed age which is expressly referred to on the front sheet of the latter report in large type. Neither expert makes a finding on the appellant's age. The judge was entitled to rely on the Merton compliant age assessment. In the light of the information in the Tribunal file the judge was entitled to treat the appellant's physical age as having little correspondence with her mental age."

[8] The First-tier Tribunal judge concluded that none of the grounds disclosed any arguable error of law and permission to appeal was refused.

[9] The petitioner then applied for permission to appeal to the Upper Tribunal by letter dated 6 December 2013 (6/3 of process). The letter, which enclosed the original application for leave to appeal, also made further submissions to the effect that the FTT determination failed to take proper account of additional evidence. The Upper Tribunal judge in a notice dated 17 December 2013 (6/1 of process) adopted the reasons for refusal of permission to appeal of the First-tier Tribunal judge. It referred to the grounds of appeal before that judge and to the letter dated 6 December 2013. The Upper Tribunal judge went on to say:

"The assessment of credibility in an asylum case is seldom easy, and two conscientious judges might come to opposite conclusions on the same evidence without falling into legal error. I cannot say that the judge here left relevant evidence wholly out of account, such as to constitute an error of law. It seems to me that Judge Clapham (the First-tier Tribunal judge who issued the original determination) was rationally entitled to reach the conclusion she did for the reasons she gave."

The Submissions

[10] Mr Byrne submitted that the test in Eba was met in this case in that there is a compelling reason advanced in the petition for judicial review of the Upper Tribunal decision to refuse permission to appeal. That was because the Upper Tribunal had failed to address and engage with a discrete ground of appeal before it which is contained in paragraph 6 of the application (6/3 of process). That ground had also been before the FTT at the permission to appeal stage. The Upper Tribunal had adopted the FTT's reasons for refusing permission to appeal which itself had not addressed paragraph 6. The further reasons given by the Upper Tribunal failed to address the matter and accordingly its decision was fundamentally flawed. He referred me to the opinion of Lord Glennie in Mdluli 2014 CSOH 28 where his Lordship emphasized the importance of the Upper Tribunal giving proper consideration to the grounds of appeal to ensure that it is clear that it had understood and engaged with the points being made therein.

[11] That failure meant that the petitioner had been denied her statutory right to have two opportunities to obtain an oral appeal against the determination of the FTT. The intention of Parliament in giving appellants that right has been frustrated. Thus there had been here a total collapse of procedure which meant that the petitioner had in effect had no fair hearing at all. In addition, it is stated in the petition at article 18 that the decision of the Upper Tribunal in refusing permission to appeal was perverse or plainly wrong.

[12] Mr Byrne said that the issue of the petitioner's credibility was crucial to her application to the FTT and, had she been found to be credible, her claim would be well founded and she would have been entitled to protection. The ground of appeal at paragraph 6, while appearing under ground 1, was in fact a separate ground which focussed on her credibility. It was to the effect that the FTT had failed to take into account, in assessing that matter, the undisputed evidence from a psychologist, Dr Copstick, to the effect that the petitioner's mental age was between 7 and 11. This evidence related directly to that crucial matter and was capable of explaining the discrepancies in her evidence.

[13] Mr Pirie submitted that this point did not meet the high test laid down in Eba. He asked me to have regard to certain principles when examining the decision of an Upper Tribunal judge in refusing permission to appeal. First, as a member of a specialised tribunal, Upper Tribunal judges should be given credit for knowing their job and their decisions should be respected unless it is quite clear there has been a misdirection. Secondly, where a relevant matter is not expressly mentioned, this court should be slow to infer that it was not taken into account. For these propositions he referred to MA Somalia v Secretary of State for the Home Department 2011 Imm AR 292 paragraphs 43-45 and EP 2013 CSOH 99 at paragraph 16. Thirdly, it is not necessary from the Upper Tribunal decision to deal with every point but those which are critical to the decision ought to be dealt with (R (Iran) v Secretary of State for the Home Department 2005 Imm AR 535 at paragraphs 13-14). Fourthly, if it can be seen that there are grounds on which the FTT would have been entitled to reject an argument, the Upper Tribunal should assume that the FTT acted on those grounds unless the appellant was able to point to convincing reasons leading to a contrary conclusion (R (Iran) para 13).

[14] It could not be said that the petitioner raises a matter which amounts to a "wholly exceptional collapse of fair procedure" (R (Cart) v Upper Tribunal 2012 1 AC 663 (Cart) Lord Dyson para 131) or which meant that the petitioner had not received a fair hearing at all (Eba paragraph 48). The petitioner had a hearing before an independent and impartial tribunal which has given its reasons on the basis of material all of which the petitioner was aware. The procedural complaint was not of the magnitude or of the type envisaged by Lords Dyson or Hope. In any event, the Upper Tribunal did consider paragraph 6 of the grounds of appeal and there is no prospect of the petitioner establishing that it did not. The Upper Tribunal does not say it ignored this matter and this court should not assume that it did. There is no legitimate basis for drawing an inference that it did. The Upper Tribunal provided adequate reasons. Although the Upper Tribunal does not mention paragraph 6 in terms, it adopted the reasons advanced by the FTT at appeal level and, taken together, it would be apparent to an informed reader that the matter was taken into account. The FTT in the decision of 29 November 2013 directed at grounds 2 and 3, dealt with the question of the petitioner's age and expressly finds that "in the light of the information in the Tribunal file the judge was entitled to treat the appellant's physical age as having little correspondence with her mental age". That demonstrated that the question of mental age was considered at both appeal levels. Furthermore, the Upper Tribunal judge said "I cannot say that the judge here left relevant evidence wholly out of account such as to constitute an error of law". Mr Pirie referred me to the opinion of Lord Jones in YHY (China) 2014 CSOH 11 at paragraph 22 where his Lordship discussed a qualitative difference between the sort of procedural irregularity described by Lord Dyson in Cart and one which results only in some lesser degree of unfairness.

Discussion

[15] The petitioner complains that the Upper Tribunal failed to consider and engage with the distinct ground contained in paragraph 6 of her grounds of appeal to the effect that the determination of the FTT did not take account of the unchallenged expert Dr Copstick as to the metal age of the petitioner. That issue was critical to the assessment of the credibility of the petitioner which itself was determinative of her application. The Upper Tribunal adopted the reasons of the FTT at appeal level and it is necessary therefore to start with those reasons. While it was accepted by Mr Pirie that those reasons do not refer to the content of paragraph 6 when dealing with grounds of appeal 1 in which that paragraph appears, it is important to recognise that ground 1 contains 2 paragraphs. The first (paragraph 5) focuses on the issue of the number of visa applications made by the petitioner and the inconsistencies in her evidence as to how many applications she made and how many times she was fingerprinted. The complaint is that the FTT did not give any detail of what inconsistencies it was referring to. Thus it is said "the applicant (and the reader) does not know what are said to be the substance of those discrepancies and whether they bear the scrutiny of the appeal court". Further it is said that the decision does not give any reasons for reaching the conclusion that the applicant "has been discrepant". So far, therefore, this ground is one directed to lack of adequate reasons. That part of the decision is not the subject of criticism and is dealt with by the FTT at appeal level in the reasons decision of 29 November 2013 and adopted by the Upper Tribunal.

[16] Paragraph 6, on the other hand, raises a discrete issue, as Mr Byrne submitted. That is whether the determination dealt with the evidence of the mental age of the petitioner and the effect of that evidence on the assessment her credibility. The first question is whether it can be said that the FTT at the permission stage and subsequently the Upper Tribunal failed to deal or "engage" with that matter. The second is whether, if there was a failure to deal with it, that amounts to the sort of procedural irregularity which falls within the scope of the supervisory jurisdiction of this court in respect of unappealable decisions of the Upper Tribunal in the light of the test laid down in Eba.

[17] While I accept that the FTT's consideration of ground 1 cannot be read as having addressed the substance of paragraph 6, that is not to say that paragraph 6 was not dealt with at all. As Mr Pirie submitted, the point about the mental age of the petitioner is also made in ground 2. Paragraph 7 criticises the FTT's determination for failing to take account of the mental age in assessing the impact on her credibility of discrepancies in her evidence about her date of birth and her (physical) age. Paragraph 8 raises the same issue in relation to her evidence about the number of times she was fingerprinted and photographed. Thus paragraph 6 can properly be seen as part of ground 2 and distinct from ground 1. At least, I am unable to conclude that it was in any way perverse for the Upper Tribunal to proceed on that basis.

[18] When the reasons of the FTT in refusing permission to appeal on ground 2 and 3 are examined along with those given by the Upper Tribunal, I am unable to conclude that the petitioner's criticism in the grounds of appeal of how the question of mental age was dealt with in the determination of the FTT has not been addressed. In dealing with grounds 2 and 3, the FTT state in terms that those grounds "refer to the issue of the appellant's age". It refers to Dr Copstick's evidence (which was itself specifically raised in the grounds of appeal in the context of mental age). I consider therefore that the reference to the "the issue of appellant's age" is one to both physical and mental age.

[19] That conclusion is reinforced by the last sentence which states that the judge at the determination stage was entitled to treat the petitioner's physical age as having little correspondence with her mental age. That seems to me to demonstrate that the FTT judge at the permission to appeal stage approached the grounds of appeal on the basis that it was not arguable that the determination judge had failed to take account of the evidence of Dr Copstick, since it implicitly accepts a disparity between physical and mental age which is explicable only by Dr Copstick's evidence.

[20] In addition to that, the Upper Tribunal was unable to say that the determination judge left relevant evidence "wholly out of account". In its context, that must, I consider, be a reference to the evidence of Dr Copstick as well as to the matters contained in the letter. I have no legitimate basis for drawing a contrary inference. In any event, the last sentence also indicates that the Upper Tribunal was looking at the whole evidence. I do not accept Mr Byrne's submission that this sentence must be read as a reference only to the matters raised in the letter from the petitioner's solicitor dated 6 December 2013. The Upper Tribunal addresses the matter of credibility in general terms. That was the principal issue raised in the grounds themselves which were renewed before the Upper Tribunal

[21] Had I found that there had been a failure by the Upper Tribunal to consider and assess the ground of appeal based on the mental age of the petitioner and her credibility, I would not have been able to conclude that this failure amounted to the sort of exceptional collapse of fair procedure which fell within the scope of the principles laid down in Eba and Cart. I agree with Lord Jones that a distinction falls to be made between the sort of irregularity which entails no fair hearing at all and one which entails a lesser measure of unfairness. In Cart Baroness Hale of Richmond referred with approval to the judgement of Laws LJ in the Court of Appeal (2011 QB 120 and page 157) when he said that the High Court might intervene when there has been a wholly exceptional collapse of fair procedure: "something as gross as actual bias on the part of the tribunal". In Uphill v BRB (Residuary) Ltd 2005 1WLR 2070 at para 24(3), Dyson LJ (as he then was) in elucidating the phrase "other compelling reason" gave the example, in the context of procedural irregularity, of a judge not allowing an appellant to present his case. These illustrations indicate how extreme a procedural irregularity requires to be in order to pass the test in Eba and satisfy me that Mr Pirie was correct to say that the irregularity in this case does not meet that standard.

[22] Here the petitioner presented her case to the FTT with oral evidence and was supported by expert oral psychological evidence (Dr Copstick) and a psychiatric report. She was represented by a solicitor. When the FTT determination is examined, the evidence of Dr Copstick is rehearsed at para 54 to 59. The submissions of her representative are set out at paragraphs 65 - 78. At paragraph 75 the particular submission is set out that the appellant was "not in a position mentally to having (sic) fabricated an account of trafficking. It was submitted that she does not have the cognitive ability to do so." At paragraph 79, which marks the beginning of the assessment of credibility, the judge says in that exercise "all matters should be looked at as a whole, seeking to place each and every relevant factor within the overall context of the claim, giving such its appropriate weight and consideration". At paragraph 85 she says that she has read carefully the conclusions of Dr Copstick's report and the fact that the petitioner has little understanding of the calendar and time and that her cognitive abilities may not be developed. Accordingly, it is apparent that the FTT's determination did consider and take account of the evidence of Dr Copstick about the mental age of the petitioner in assessing credibility.

[23] Even if the Upper Tribunal did not consider the issue of mental age, I am unable to conclude that the appellant would have a real (as opposed to a high) prospect of succeeding in an appeal to the Upper Tribunal on the basis that the FTT failed to have regard to the evidence of mental age. I therefore cannot say that a compelling reason has been advanced for review of the Upper Tribunal's decision to refuse permission to appeal to it. Nor can I say that the decision is in any way perverse or unreasonable.

[24] Mr Byrne also argued that, if the Upper Tribunal did consider the ground of appeal contained in paragraph 6, inadequate reasons were given for doing so. Mr Pirie contended that the reasons were adequate, having regard to the approach he advocated and which I have summarised above.

[25] The evidence of Dr Copstick was plainly critical and thus the basis on which this ground was refused ought to be readily ascertainable. However, the Upper Tribunal judge states that he could not say that in the determination the FTT judge left relevant evidence wholly out of account. I am satisfied that that includes a reference to Dr Copstick who is specifically referred to in the FTT reasons for refusal. The informed reader would, in my view, be in no real and substantial doubt that the ground was rejected on the basis that it was the Upper Tribunal's view that the FTT's determination did take account of Dr Copstick's evidence as to the mental age of the petitioner in the way that I have described above. In any event, as Mr Pirie contended, since I have found that the FTT's determination did deal with the matter, it cannot be said that the petitioner suffered any substantial prejudice since the petitioner's appeal on this point would have been bound to fail.

[26] The second main point advanced is whether the Upper Tribunal applied the wrong test in considering whether permission to appeal should be granted. Mr Byrne submitted that the last sentence in the reasons of 17 December 2013 indicated that the Upper Tribunal had dealt with the merits of the matter and not considered whether the appeal was arguable. I cannot accept that submission. The application for permission to appeal contends at paragraph 12 that the grounds are arguable. The Upper Tribunal reasons adopt those of the FTT which narrate that there is no arguable error of law in the grounds. There is no legitimate basis for any inference from the terms of the last sentence that the Upper Tribunal judge proceeded to ignore such a basic matter and proceeded to decide the appeal without proceeding to an oral hearing.

[27] The final point related to what Mr Byrne contended was an important point of practice: whether there was a greater onus on the Upper Tribunal, when considering permission to appeal on the basis of written representations, to show it has addressed and understood the grounds before it so that this court could perform its function in applying the test in Eba. Mr Pirie submitted that the nature of the duty incumbent upon the Upper Tribunal to give reasons is already well established and this petitioner raised no new point in that respect. I am in agreement with those submissions. Not only is it well established in case law but it is also canvassed in the Guidance Note of 2011 No 1 referred to with approval in recent cases in this particular jurisdiction such as Mdluli paragraph 7.

Decision

[28] I therefore conclude that the petitioner has not advanced any grounds which can be said to fall within the scope of judicial review as defined by Eba and I will repel the petitioner's pleas in law, sustain those of the respondent and dismiss the petition. I will reserve meantime all question of expenses.